K V.Kohli Thr. L.Rs vs State
2012 Latest Caselaw 3914 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           TEST. CAS. 20/1997
%                                                             5th July, 2012

         K V.KOHLI THR. L.RS                               ...... Petitioners
                        Through:         Mr. Harish Malhotra, Sr. Adv. with
                                         Mr. Lovkesh Sawhney and Mr.
                                         D.K.Pandey, Advocates.


                            VERSUS

         STATE                                               ...... Respondent

                            Through:         Mr. Mahendra Rana, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?              Yes


VALMIKI J. MEHTA, J (ORAL)

I.A.No. 16670/2011 (Under Sections 45 and 73 of Indian Evidence Act)

This is an application filed by the petitioners for leading evidence of

their private handwriting expert in terms of the order dated 6.8.2008.

Ordinarily, there would have been no need for this application because the

permission has already been granted vide order dated 6.8.2008, however

actually the permission which is sought by means of the present application

is that original Will dated 7.3.1986 (evening) which is lying in a sealed

Test Cas.20/1997 Page 1 cover be allowed to be photographed by the handwriting expert so that a

report with respect to the signatures of the testator can be prepared.

Accordingly, this application is allowed and the handwriting expert of the

petitioners is allowed to take photographs of the documents filed in this

Court by either of the parties, of course after giving due notice of the date to

the opposite side when the handwriting expert will appear for taking

photographs of the documents and the signatures thereon. If any of the

documents are lying in a sealed cover the same will be opened before the

concerned Assistant Registrar and who will reseal the envelope after the

needful is done.

I.A. stands disposed of.

I.A.No.4665/2012 (U/s 151 CPC)

1. This is an application filed by the respondent no.2/objector under

Section 151 CPC seeking directions that issue no.2 framed on 30.8.2011 be

decided as a preliminary issue.

The order dated 30.8.2011 reads as under:-

      "      ORDER
             30.8.2011

I.A Nos. 12170/2011 (filed by learned counsel for the petitioners1(a) to (c) seeking discharge in this case)

Test Cas.20/1997 Page 2 The application is sought to be withdrawn since the petitioner has now contacted the counsel and given instructions to her. The application is accordingly dismissed as withdrawn.

TEST.CAS. 20/1997

The following issues are framed to decide this petition:-

1. Whether Dr Kohli validly executed the Will in the evening of 07th March, 1986?OPP

2. Whether the legal representatives of late Shri K.V.Kohli have no right to prosecute this petition? OPO

3. Relief.

No other issue arises or is claimed.

Affidavit by way of evidence be filed within six weeks. The parties to appear before the Joint Registrar for fixing a date for cross-examination of witnesses of the petitioner on 02nd November, 2011."

2. A reading of this order shows that when issues were framed on

30.8.2011, no request was made to treat issue no.2 as a preliminary issue.

3. Before I come to the facts of this case, the legal position will have to be

examined with regard to issues; a preliminary issue, a preliminary issue which

is an issue affecting jurisdiction of the Court or is a legal issue containing bar to

the suit created by law; and finally as to whether it is compulsorily mandated

that the Court must necessarily first decide the preliminary issue merely

Test Cas.20/1997 Page 3 because it falls in sub rule (2) of Order 14(2) CPC.

4. Order 14 Rule 2 CPC reads as under:-

"2.Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issues, the Court shall, subject to the provisions of sub-rule(2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

5. Order 14 Rule 2 CPC was amended by Act 104 of 1976 by the legislature

w.e.f. 1.2.1977. The provision was amended to ensure that there is no

piecemeal trial on different issues by taking them as preliminary issues.

Experience showed that there was a considerable delay in disposal of many

suits merely because of an issue being tried as a preliminary issue, thereafter

challenge being laid to various higher Courts and again the suit coming back for

a fresh decision to the original Court after many many years. The legislative

intention therefore, and which is clear from every part of Order 14 Rule 2 (2)

CPC, is that except in very limited cases under Order 14(2)(2), all issues shall

Test Cas.20/1997 Page 4 be tried together and the Court shall pronounce judgment on all issues including

a preliminary issue. In fact, even if the issue falls under Order 14(2)(2), yet,

this provision uses the expression „may‟ (not once but twice) and not „shall‟

thus indicating that the Court in spite of the issue falling under Order 14(2)(2),

yet, in the facts of a case may refuse to try that issue as a preliminary issue.

Finally it be noted that when Order 14(2)(2) CPC allows the Court to treat an

issue of „bar to the suit created by any law‟ as a preliminary issue it has to be

understood that Order 14(2)(2)(b) has substance similar to Order 14(2)(2)(a) i.e

the bar to the suit created by law has to be threshold bar similar to lack of

jurisdiction of the Court. Thus the legal bar contemplated under Order

14(2)(2)(b) is a threshold bar. Putting it differently to pray for dismissal of a

suit because of certain legal provision has two aspects. One aspect is that the

Court has jurisdiction and then because it has jurisdiction it decides the case on

merits by applying some legal provisions to decide the suit. This aspect cannot

fall under Order 14(2)(2)(b). What falls under Order 14(2)(2)(b) are those bars

by which the Court is prevented/barred to decide the merits of the matter.

Further, it is no longer res integra that an issue on which the evidence is required

cannot be said to be a legal issue and therefore cannot be a preliminary issue vide

Test Cas.20/1997 Page 5 Ramesh B.Desai & Others Vs. Bipin Vadilal Mehta & Others (2006) 5 SCC

638.

6. Before proceeding further, I must also note a brief history of this case

which may have some bearing on the decision of the present application. This

petition was dismissed in default on 13.5.1992. Actually, the original petitioner

had expired much before 13.5.1992. The petition had thus actually abated,

however, it was dismissed in default. The legal heirs of the original petitioner

Mr. K.V.Kohli thereafter filed application for their substitution alongwith

restoration application. Vide order dated 4.12.2000, the application for

restoration was allowed subject to payment of ` 25,000/- as costs inasmuch as,

the respondent no.2/objector did not oppose the restoration application.

Thereafter, the objector filed an application under Order 7 Rule 11 CPC being

I. A. No. 10816/2007 which was dismissed by a learned Single Judge (Sanjay

Kishan Kaul, J.) on 21.9.2007 with costs of ` 7500/-. The Court noticed the

lack of good faith on the part of the respondent no.2/objector in moving

repeated applications. This order dated 21.9.2007 was carried in appeal by the

respondent no.2 and which appeal being FAO(OS) 462/2007 was disposed of

vide order dated 20.11.2007. The Division Bench noticed that a preliminary

Test Cas.20/1997 Page 6 issue was already framed in this case vide order dated 2.8.2001 with respect to

the validity of power of attorney executed by the legal heirs of Sh. K.V.Kohli in

favour of their maternal uncle Sh. Vinod Nair, and thus it was observed by the

Division Bench that the aspect of disentitlement of the legal heirs of the

erstwhile petitioner Mr. K.V.Kohli to continue the petition (i.e. maintainability

of the petition) will also be examined as a preliminary issue as there was

already a preliminary issue of the validity of the power of attorney. Of course

the validity of framing of that preliminary issue on 2.8.2001 is not before me

however, I must note that if any of the counsel would have pointed out the

different aspects and sub-rules of the provision of Order 14 Rule 2 CPC to the

Court at the relevant stages, issues with regard to the validity of the power of

attorney or maintainability of petition by LRs of Mr. K.V.Kohli would not have

been directed to be decided as preliminary issues. I need not say anything

further on this aspect in view of what I am holding hereinafter. However, I note

that the Division Bench by its order of 20.11.2007 observed that the issue with

respect to the competence of legal heirs of Mr. K.V.Kohli to prosecute the

petition will be treated and decided as a preliminary issue alongwith the

decision of the preliminary issue framed on 2.8.2001 with respect to the validity

Test Cas.20/1997 Page 7 of the power of attorney in favour of Sh. Vinod Nair, and therefore, the issue

with respect to the incompetence of the legal heirs of Sh. K.V.Kohli to pursue

the petition was to be treated as incidental to the preliminary issue framed on

2.8.2001.

7. The suit thereafter came up before different learned Single Judges of this

Court on different occasions and the petitioners also applied for amendment of

the probate petition which was allowed vide order dated 4.9.2009. Though

there were some disputes with respect to the delay in filing of the amended

petition, ultimately, the amended petition was taken on record and Division

Bench on 31.5.2010 dismissed the challenge to the order dated 4.9.2009 of the

learned Single Judge allowing amendment.

8. A Learned Single Judge of this Court (V.K.Jain, J) on 16.11.2010,

without reference to the provision of Order 14 Rule 2 CPC noticed the difficulty

in treating an issue as preliminary issue when trial/evidence was required,

however, in view of the orders of the Division Bench directed that the evidence

be led with respect to preliminary issue framed on 2.8.2001.

9. After many dates before the Joint Registrar, the respondent no.2

obviously seems to have second thought on getting the preliminary issue qua

Test Cas.20/1997 Page 8 the validity of the power of attorney in favour of Mr. Vinod Nair

decided/treated as a preliminary issue, and therefore gave up this objection in its

entirety, and which is recorded by the Registrar in his order dated 24.1.2011.

10. The case was thereafter listed for framing of issues, and issues were

framed on 30.8.2011 as stated above. At the cost of repetition it may be

observed that on 30.8.2011, there was no request made for treating the issue of

the legal heirs of Mr. K.V.Kohli not being entitled to pursue the petition on

account of certain provisions of Indian Succession Act, 1925 as a preliminary

issue. The matter was fixed vide order dated 30.8.2011 before the Joint

Registrar for fixing a date for cross examination of the petitioner. It is

thereafter much later on 6.2.2011 that the present application has been moved to

treat the issue no.2 as a preliminary issue.

11. Learned counsel for the respondent no.2 very vociferously argued that

the order of the Division Bench of this Court dated 20.11.2007 mandates that

this Court should try the issue with regard to the competence of legal heirs of

Mr. K.V.Kohli to pursue the probate petition as a preliminary issue, and wanted

to argue by reference to different provisions of Indian Succession Act and also

certain judgments that the legal heirs of Sh. K.V.Kohli do not have a right to

Test Cas.20/1997 Page 9 pursue the present petition as a probate case as a probate can only be granted in

favour of an executor named in the Will. On behalf of the L.Rs of Mr.

K.V.Kohli it was countered that at best on the death of Mr. K.V.Kohli/executor

instead of probate being granted, what will be granted will be a letter of

administration with the Will annexed, and this has more to do with

form/heading and not with substance of the case which remains one hundred

percent the same.

12. In fact, I have not permitted the counsel for respondent no.2 to show me

the provisions of the Indian Succession Act, 1925 which he wanted to rely upon

and the judgments, because, in my opinion I would be required to deal with

such arguments only if I am required to treat the issue no.2 as a preliminary

issue or I exercise my discretion to treat the issue no.2 as a preliminary issue. If

I do not have to decide the issue no.2 as preliminary issue or I exercise my

discretion against treating this issue no.2 as a preliminary issue, then, arguments

on merits of this issue will be considered at the stage of final arguments after

evidence of both the parties is completed in this case. In my opinion, the order

of the Division Bench dated 20.11.2007 would not bind this Court to treat the

issue no.2 as a preliminary issue for the reasons given hereinafter.

Test Cas.20/1997 Page 10

13. Firstly, the respondent no.2, and in whose presence the issues were

framed on 30.8.2011, could have insisted in view of the order of the Division

Bench dated 20.11.2007 to treat issue no.2 as a preliminary issue, but obviously

she did not seek to do the same. Thus, when the issues were framed on

30.8.2011, it was a conscious act not to seek decision on the issue no.2 as a

preliminary issue inasmuch as not only there is no such prayer which is

recorded in the order dated 30.8.2011, but also, it is even not the case of the

respondent no.2 that though such a prayer was made but not recorded on

30.8.2011 when the issues were framed. Secondly, for not taking issue No.2 as

a preliminary issue, there may be some bearing on this aspect of the order dated

24.1.2011 when the respondent no.2 gave up his rights to treat the issue of

validity of the power of attorney in favour of Mr. Vinod Nair as a preliminary

issue and thus this also could be one reason why respondent no.2 did not press

for getting the issue treated as a preliminary issue. (Though, of course in the

order dated 24.1.2011, the presence is wrongly recorded of Sh. Mahender Rana,

Advocate for the respondent no.1 it is not disputed before me that actually Mr.

Mahender Rana has always appeared and in fact appeared on 24.1.2011 only for

respondent no.2.) Thirdly it is possible that the respondent no.2 could have

Test Cas.20/1997 Page 11 been advised of the correct legal position qua the subject of preliminary issues

under Order 14(2) and thus did not press for treating the issue No.2 as a

preliminary issue because the same would have resulted in evidence being led

in tranches.

14. Keeping all the aforesaid facts in mind, including that even the Division

Bench when it passed the order dated 20.11.2007 may not have passed the order

treating the issue of competence of legal heirs of Sh. K.V.Kohli to pursue the

probate petition as a preliminary issue, if Order 14 Rule 2 CPC was brought to

its notice. I hold that issue no.2 need not be treated as a preliminary issue. This

issue does not fall within the expression and intendment of „bar of suit created

by law‟ as stated in Order 14(2)(2)(b) though it has so been sought to be argued

on behalf of respondent No.2. Assuming issue No.2 can be said to be a

preliminary issue, I refuse to exercise discretion to treat this issue as a

preliminary issue and which is vested in me as per the intention of the

legislature in amending Order 14(2) by Act of 104 of 1976. A lot of water has

flown under the bridge since the order of the Division Bench dated 20.11.2007

inasmuch as the issue of validity of power of attorney has not to be treated as a

preliminary issue as per the statement of the counsel for the respondent no.2

Test Cas.20/1997 Page 12 and also that there was no request on 30.8.2011 to treat the issue no.2 as a

preliminary issue I have therefore at this stage to look into the matter only from

the point of view of the present application falling within the applicable

ingredients of Order 14 Rule 2 CPC. Though the application is titled under

Section 151 CPC, really, the same is under Order 14(2) CPC.

15. Before I conclude, I must state that I put it to counsel for the respondent

no.2, and which suggestion was agreeable to the counsel for the petitioners, that

let the evidence be recorded by a Local Commissioner so that the same is

completed within a few months, and I would give the power to Local

Commissioner to impose heavy costs on the parties seeking unnecessary

adjournments, and thereafter the case would be disposed of by this Court to the

extent possible within the next six odd months, however, the counsel for the

respondent no.2, in spite of the assistance being sought on this matter for

expeditious disposal of the petition, refused to agree and insisted that I dispose

of the present application and direct that issue no.2 be treated as preliminary

issue.

16. In view of the aforesaid discussion and more particularly, as regards the

mandate of Order 14 Rule 2 CPC, as also the fact that even a preliminary issue

Test Cas.20/1997 Page 13 falling under Order 14 Rule 2 (2) CPC may not be treated as preliminary issue

as per discretion of the Court, and considering the facts of the case, I am of the

firm belief that all the issues should be heard and disposed of together and there

should not be unnecessarily a piecemeal trial. I note that already this case has

the trait of delays being caused on account of various applications being filed

by one or the other parties and thereafter the orders being challenged before the

Division Bench, and during which period obviously the disposal of the main

petition had to remain in limbo-a position which is an anathema to the

legislative intentions.

17. The application is accordingly dismissed, and in view of the aforesaid

conduct of the respondent no.2, with actual costs being the lawyers fees for

today‟s hearing incurred by the petitioners, and which details of costs should be

filed by the petitioners on an affidavit within a period of one week from today,

of the costs having been paid to their lawyers, and the costs thereafter shall be

paid within a period of two weeks thereafter. I am imposing actual costs in

terms of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011)

8 SCC 249 and by invoking my discretion to exempt the applicability of the

Rules of this Court under Rule 14 of the said Original Side Rules, 1967.

Test Cas.20/1997 Page 14

18. List before the Registrar for fixing the date for evidence on 13th August,

2012.

JULY 05, 2012                                      VALMIKI J. MEHTA, J.
ib




Test Cas.20/1997                                                       Page 15